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Internet 

is your passion 


Copyright as a limit to the freedom of expression on the internet 


Carolina Botero 
Laura Mora 
Maria Juliana Soto 


Fundacion 

«arisma 


karisma.org.co/internetestupasion 




Internet is your passion 

Copyright as a limit to the freedom of expression on the Internet 


Draft of report results 
CODE-Colombia project 


Carolina Botero 
Laura Mora 
Maria Juliana Soto 


Karisma Foundation 

Diciembre de 2016* 


* The authors note: Our report is the result of an investigation carried out 2016 in the project "Understanding the 
Socio-Economic Impact of Copyright in the Digital Economy" (CODE project). It's important to emphasise this 
date, because in three years many of the practices complaints and recommendations that were reflected in our 
work, have been able to change. We hope that this contribution is read as the testimony of a series of dynamics 
of the digital world in Colombia in a given period of time. A photograph of the internet 






Fundacion 

Karisma 


Bogota, Colombia 
2019 

In an effort so that all persons have access to the knowledge, Karisma Foun¬ 
dation, is working to make your documents accesible that is to say that its 
format includes metadata and other elements that make it compatible with 
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The purpose of the accessible deign is that all people can read, including 
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understanding 

More information about this topic in: http://www.documentoaccesible. 
com/#que-es 

Consult this document online at the web site Karisma in: ittps://karisma 
org.co/internetestupasion 


Written by: 

Carolina Botero 
Laura Mora 
Maria Juliana Soto 

Editorial Coordination: 

Diego Mora Bello 

Design and layout: 

Ruben Urriago 



This material flows under a Creative Commons license CC BY-SA 4.0. You 
can remix, tweak, and create from the work even for commercial purposes 
and credit the author and license new creations under the same conditions. 
To view a copy of this license, visit: https://creativecommons.org/licenses/ 
by-sa/4.0/deed.es_ES. 




3 



Tale of contents 


Foreword. 5 

Introduction. 7 

How does the "notice and takedown" system work on the most common 

content platforms on the Internet?. 11 

And how do counter-notices work in practice?. 14 

The DMCA and its impact in other Latin American countries. 23 

Conclusions. 24 

Recommendations for ISPs. 28 

References. 30 











5 



Foreword 


This report is the result of the Karisma Foundation's participation in the project Understanding the 
Socio-Economic Impact of Copyright in the Digital Economy(CODE project, 2016) in which different 
NGOs and academics working on human rights and Internet issues in the United States, Brazil, 
India, Chile and Colombia collaborated. The study sought to investigate the impacts of copyright 
in audiovisual projects and expressions that circulate on the internet through different platforms. 

The Karisma's report analyzes some problems arising from the content control in social media 
generated in Colombia with the application of the Digital Millennium Copyright Act (DMCA). The 
DMCA is a US standard that impacts the accounts of users worldwide, given that the most popular 
social networks are US-based companies and, therefore, comply with its laws. 

Our investigation shows that the DMCA's notice and takedown system, which has no due process 
guarantees and is disproportionate, is taking people out of the web, censoring them, intimida¬ 
ting them, and limiting their right to freedom of expression, without trial formula. In 2016, we 
followed up on some cases reported on Twitter with the hashtags #nomascensurawinsport (#No- 
moreWinsportcensorship) and #elcanalquetodosodiamos (#Thechannelweallhate). In addition, 
we find other cases of persons affected by notifications of possible copyright infringement and 
automatic content removal systems. 

The risks that content control has for the exercise of human rights are multiple. Regulations are 
displacing the role of the courts; private companies are the ones that are shaping the internet 
and have an even more leading role in what can or cannot be published there. It is important to 
remember that the consequences do not only affect public figures, journalists, politicians or large 
organization. Research shows that they also affect the freedom of expression of many people, 
who do not necessarily have sush profiles. There is a thin line between a measure that seeks to 
control abuse and censorship. 

The adoption of the EU Copyright Directive in March 2019 is a sign of the urgency for both in¬ 
ternet services provider (ISP) and policymakers to mainstream a human rights approach when 



addressing content regulation through copyright law. This new regulation imposes, among other 
things, these use of automated filters that will review the contents before they are published. The 
adoption of this measure will sharpen the imbalances discussed in this report. In addition, it re¬ 
presents an even more restrictive scenario than the current one, since it implements prior control 
systems on the platforms. In other words, it will become an instrument of preventive censorship. 1 

For such a proposal to be implemented in our context, it would first have to conform to the In¬ 
ter-American Human Rights System that prohibits practices such as preventive censorship. 
However, since we recognize that on the Internet borders are difficult to define, the Directive is 
undoubtedly a bad example for the region. 

In an open letter published in April 2019, some Latin American civil society organizations, inclu¬ 
ding Karisma, express our concern about the effects of the European Directive on our continent. 
With respect to the central issue of this investigation, we point out in the letter: 

"Automated filters have been criticized for two important reasons: their lack of transpa¬ 
rency in the way they work and make decisions; and the namy "false positives" included 
in their results (especially when algorithms must navigate through the complexities of 
local laws that have copyright exceptions and other legitimate uses, which is difficult 
even for specialists). In addition, it is not yet known what kind of appeal mechanisms will 
be enabled by the platforms, which is not a great relief if we consider the problems of the 
current system, and how they will respond to the affected users in Latin America and the 
Caribbean. In addition, these mechanisms do not have oversight control systems." 

Other points in the letter raise concerns regarding freedom of expression, surveillance risks, in¬ 
creased economic homogeneity, restrictions on competition and innovation, the impact on infor¬ 
mation diversity and media pluralism, among others. 2 

We recognize that the the internet a disruptive tool that has allowed the circulation of voices, and 
creations of diverse people and places. For this reason, we consider that these types of regula¬ 
tions threaten the idea of a free, open and participatory internet that we promote. We hope that 
this report will contribute to the debate to counterbalance the European agenda that threatens to 
consolidate itself as a role model for many countries, including Colombia. 

We believe that the data collected in 2016 3 are still relevant and contribute to the discussion, bea¬ 
ring in mind that, on the one hand, the problems of the users persist and tend to worsen. On the 
other hand, content regulation continous to be a pending debate in Colombia, which also faces 
pressure from the United States to comply with the implementation of the FTA so that the legis¬ 
lation can be adjusted and a private content control system can be created. 


1 American Convention on Human Rights (Pact of San Jose), Article 13. Recovered on 15 July 2019. Available at https:// 
www.cidh.oas.org/Basicos/English/Basic3.American%20ConventionJ 

2 The full letter isavailableathttps://karisma.org.co/la-directiva-europea-de-derecho-de-autor-y-su-impaCto-en-los-usua- 
rios-de-america-latina-y-el-caribe-una-perspectiva-desde-las-organizaciones-de-la-sociedad-civil/ 

3 Throughout the document, any relevant update will be indicated. 



7 



Introduction 


The flags and the T-shirt are ready; the match is in the stadium where the soccer team that is 
carried in the heart plays. At minute 45 of the second period, probably the last chance to win, the 
play starts, a pass and a goal, the fans celebrate. The most emotional moments are recorded on 
the cell phone and, almost in real time, are on YouTube, Twitter, Facebook and Vine. It’s a soccer 
Sunday, happiness is complete. A couple of days later a message appears in the personal email 
account mentioning that the videos and photos have been deleted and that even the account 
could be deleted. This is how the fan learns it has been "notified" of a possible copyright violation. 

Indeed, penalty shots, short plays, goals and even videos recorded from the bleachers of the sta¬ 
diums and televisions in the homes of fans and sports followers were removed by these platforms 
following the system of "notice and takedown" of contents of United States copyright law. 

In the notices they received, a third party claimed that the exclusive right to retransmit the mat¬ 
ches of the Colombian soccer tournament belonged it 1 and therefore, the reason for the takedown 
was copyright infringement. The situation became public in March 2016 when the #NoMasCen- 
suraWinSports hashtag became a trend on Twitter, thanks to the fact that the affected people 
used it to express their disagreement. A situation that was repeated in May, this time the hashtag 
was #ElCanalQueTodosOdiamos. 

However, Colombian soccer fans are not the only ones who see their content disappear from the 
network. Some of these fans are professional fans, who are using the networks to strengthen and 
create a trade in commenting on sports, or are journalists. Nor is it exclusive to sports, there are 
also artists and cultural managers who have also been notified by different platforms about alle- 


1 According to the information provided by the portal of the WinSports channel, this "is the only media that has the 
rights to broadcast Colombian Professional Football (FPC for its Spanish acronym), reason why, no media or a third 
party may record, fix or broadcast in whole or in part by any means known or to be known, the matches of the FPC, 
consequently, who wants to do so, must have the prior and express authorization and negotiation of such rights by 
said channel." See: Winsports (2016) "Win Sports explains everything related to the use of FPC material here." Available 
(in Spanish) at: http://newadmin.winsports.co/futbol-colombiano/noticias/win-sports-te-explica-aqui-todo-lorelare- 
con-el-uso-de-material-del-fpc-5616 



Internet is your passion 



ged infractions of copyright they have committed on their channels, although in some cases the 
"infringing contents" are their own, original creations. 

The cases that will be reviewed in this document put several of the concerns in context that have 
been expressed in the discussions on freedom of expression, responsibility of internet interme¬ 
diaries and copyright in digital environments. For example, are content removal mechanisms 
balanced for owners and users? If the removal of content was incorrect, who assumes responsi¬ 
bility for the possible violation of freedom of expression or possible economic damage that could 
have been caused? What is the role of Internet intermediaries to defend the rights of people? How 
committed are Internet intermediaries to international human rights principles that have been 
developed in relation to their role in digital ecosystems? Are the transparency reports presented 
annually by Internet intermediaries sufficient? 

What is understood by Internet intermediaries (ISPs) is explained in Article 19 in its report 

termediarios del Internet: el dilema de la responsabilidad'. 2 There are different types of interme¬ 
diaries, such as Internet access providers, web hosting service providers, social media platforms 
and search engines; intermediaries are distinguished from "content producers," the latter being 
those people or organizations that are responsible for the production of information and its online 
publication." 

The "content producers” - nowadays any person who uses the Internet - and the ISPs are in a 
permanent relationship. Given this closeness, tensions and conflicts have not been expected, in 
fact, they have been addressed in various scenarios such as the World Intellectual Property Or¬ 
ganization, 3 the World Internet Governance Forums, 4 and through reports and initiatives of civil 
societies such as OnlineCensorship.org led by EFF and Visualizing impact, 5 the Lumen Data Base 
project of the Berkman Center, 6 or The Manila Principles on the responsibility of Internet interme¬ 
diaries throughout the digital ecosystem. 7 

The GNI (Global Network Initiative) also appears in this scenario, a coalition made up of compa¬ 
nies from the sector of ICTs, investors, members of civil society and academics, within whose 
objectives are to provide guidance to these companies and interested parties on how to protect 


2 Article 19 (2013). "Intermediaries of the Internet: Responsibility Dilemma - Questions and Answers Session" Report 
available (in Spanish) at: https://www.articlel9.org/resources.php/resource/37243/es/los-intermediarios-del-interne- 
t:-dilema-de-responsabilidad-%E2%80°/o93sesi%E3%B3n-de-preguntas-y-respuestas 

3 WIPO. "Internet Intermediaries and Creative Content" Available at: http://www.wipo.int/copyright/en/internet_inter- 
mediaries/index.html 

4 For more information about the IGF http://igf2016.mx/ 

5 See https://onlinecensorship.org/ 

6 See https://lumendatabase.org/ 

7 The principles propose a series of guidelines to protect freedom of expression and create an environment conducive 
to innovation, and were created so that public policy makers and intermediaries consider a reference framework for 
minimum guarantees and good practices when it comes to "elaborating, adopting and reviewing legislation, policies 
and practices that govern the responsibility of intermediaries for third party content" 




and promote the human rights of freedom of expression and privacy, especially when faced with 
pressure from governments to take actions that may violate these rights. 

On the other hand, in the Colombian legislative context, it is important to mention that the Santos 
government first presented a copyright reform bill in 2011, which was known online as the "Ley 
Lleras 1" (Lleras Law l) 8 . This bill sought to create a "safe harbor" to avoid the liability of Interne- 
tintermediaries. To this end, a notice and withdrawal system was created in Colombia based on 
the "Notice and Takedown" 9 that is contemplated in the Digital Millennium Copyright Act (DMCA) 
10 or copyright law in the United States. The Lleras 1 bill was filed six months after it was presen¬ 
ted and is still pending in the country's legislative agenda. However, the Colombian civil society 
presented a series of recommendations for the guarantee of human rights in a law that regulates 
the responsibility of Internet intermediarief that precisely sought to keep that discussion open 
in the country. However, local discussions on these issues do not transcend in an important way, 
among other reasons, because the platforms of expression that we use are substantially tied to 
foreign laws. 

The ISPs involved in this research and, in general, those most used on the Internet, are domiciled 
in the United States, and therefore the DMCA and the mechanisms contemplated by this law have 
special relevance. However, the exercise of the rights of individuals and their ability to activate 
them in a digital economy is closely linked to the local context in which their relationships de¬ 
velop. This component is central, for example, to the possibility of being informed, reporting and 
creating opinions and, therefore, it must be considered when talking about the problems identi¬ 
fied in this report, mainly related to the tension between freedom of expression and copyright. It 
could be said that for a platform to be global it must also be local. 

The tension described is a real problem that has been especially documented and denounced 
as censorship of journalists, human rights defenders or minority groups. In relation to the eli¬ 
mination of content and / or accounts on the Internet of these sectors, different organizations 
have been pronounced and are described in reports of international human rights organiza¬ 
tions such as the Office of the Rapporteur on Freedom of Expression of the OAS, which analyzes, 
year after year, "issues related to state regulation, the private sector and freedom of expression 
in the digital age." 11 


8 In Colombia, the Lleras Law has been called the various attempts at copyright reform derived from commitments 
acquired after the signing of the FTA with the United States. Therefore, there have been other bills but they do not 
correspond to the issue of liability of intermediaries that is addressed here. For more information on the Lleras Law 
saga: https://karisma.org.co/leyllerasadebate/ 

9 See Table 1 

10 THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998 U.S. Copyright Office Summary. December 1998. Available at: 

https://www.copyright.gov/legislation/dmca.pdf 

11 Annual reports of the Office of the Special Rapporteur for Freedom of Expression of the OAS. Available at: 

oas.org/es/cidh/expresion/informes/anuales.asp 


Copyright as a limit to the freedom of expression on the Internet 



Internet is your passion 



However, the cases analyzed here break with this trend. It is about other types of expressions, 
related to culture, with daily actions of Internet users, such as sharing a video or a picture of a soc¬ 
cer match, a chat at a bar or their own original musical composition. All this is evidence that the 
potential of the Internet for any person is endangered by these practices and recalls what the UN 
Special Rapporteur said in 2011 for the promotion and protection of the right to freedom of opinion 
and expression, who pointed out the dangers that the exercise of this right these types of systems 
, 12 which are disproportionate and not very transparent in relation to how the verification 
of the complaint and the removal of content is done, as well as generating a censorship effect for 
people who use the Internet and a due process of law problem. Ultimately, these systems do not 
offer enough information to the people affected and, consequently, have fewer resources to defend 
themselves, when they do. 

The research carried out by the Karisma Foundation seeks to analyze the impact of these non-ju- 
dicial procedures for the exercise of the freedom of expression of any user of the network in Co¬ 
lombia and also suggests that these restrictions have an effect on their active participation in the 
digital economy. This report reflects the results describing, in the first place, the way in which 
the ISPs YouTube, Twitter, Facebook, Vine and Instagram say they carry out the "Notice and take¬ 
down" process, that is, what their terms and conditions of use announce. The second part of the 
document explains and contrasts this procedure with the experience of 11 interviewees and with 
other documents that make it possible to identify their effects - for example, with the transparen¬ 
cy reports of the ISPs. The third part of the document identifies the main problems and loopholes 
in the way ISPs conduct this procedure, and therefore in the way they protect the rights of users 
of their platforms. And finally, a series of recommendations are presented for the ISPs to improve 
these practices. 


12 ars TECHNICA. "UN report:" three strikes "Internet laws violate human rights" Available at: http://arstechnica.com/ 
tech-policy/2011/06/un-free-speech-watchdog-blasts-three-strikes-rules/ 



11 



How does the "notice and takedown” system 
work on the most common content platfor¬ 
ms on the Internet? 


In order to analyze the way in which the country's main social networks (YouTube, Twitter, Fa- 
cebook, Vine and Instagram) implement the legal obligations (DMCA) of content reduction and 
cancellation of accounts due to the possible violation of copyright of third parties, the Karisma 
Foundation analyzed the policies and public information of each of these platforms. The results 
are collected in the following pages. 


Information they offer about counter-notices 

The first finding that draws attention in this research is that, in the Terms and Conditions of Use 
of the platforms, there is abundant information and even resources (such as guides and support) 
that inform on how to carry out notices. In fact, on some platforms there are even friendly resour¬ 
ces to carry out notices; this facilitates the complaints by those who believe their copyright is 
affected. This is the case on ook, Yo and . On the other hand, Twitter and 

Vine, although they do not have tools of this type, they do inform the owners that the procedure 
consists of sending a notice to a certain email. 

It is important to understand that, in line with the DMCA, the ISPs notify the person against whom 
a complaint has been filed for possible copyright violation after they have already removed the 
contents - this is warned in the terms and conditions of use of the platforms analyzed. With the 
fait accompli, the affected people will receive a notice informing them that their content has been 
blocked or eliminated, even the ISPs, in order to "do everything possible to inform the user of the 
takedown of the material and the notice," 13 a copy of the complaint filed could be delivered to the 
people affected. However, none of the ISPs state the submission of the complaint in their policies, 


13 See: "17 U.S. Code § 512 - Limitations on liability relating to online material" Available at: [tps://www.law.cornell.edu/ 
uscode/text/17/512 



Internet is your passion 



to the extent that the interviewees know who reported them and what content they reported, but 
they frequently state that they are not clear about the "why." 

The DMCA, recognizing that the notice may be wrong or abusive, allows those who have received 
a notice to make counter-notices. This means that people accused of alleged violation of copyri¬ 
ght law can respond to the notice received. However, as described below, in the terms and con¬ 
ditions of use of the ISR the tools to carry out this procedure are insufficient, whereas the notice 
process is much more described, explained and supported. 

For example, while the YouTube Terms of Service only explains iasic points about counter-noti- 
information about notices includes an to elaborate them, that is, the complai¬ 

nant is guided in the step-by-step process. 14 

In the case of Facebook and Instagram, the terms and conditions of use include on 

how counter-notices should be processed in accordance with the DMCA. Facebook notes that it 
abides by the procedures of the law and that instructions to respond to a notice will appear in the 
message notifying the removal of content or blocking of an account. This, again, contrasts with 
the information available to copyright owners which is much 

On the other hand, although Twitter includes information on its page regarding the 

counter-notice, that is, the resource with which those who believe have received an erroneous or 
abusive notice, the information includes the following warning: 

"Submitting a notice of copyright or resource infringement is serious! 

Think twice before submitting a claim or resource, especially if you are not sure whether 
you are the actual owner of the rights or authorized to act on behalf of a rights holder. 

There are legal and financial consequences for fraudulent or bad faith submissions. Be 
sure to be the true owner of the rights, or have reasonable certainty that the material was 
removed by mistake, and to understand the repercussions of filing a false claim." 

The statement is true, but it can also be read as a deterrent mechanism. The system is made to 
encourage reporting and discourage the complaint. 

According to the DMCA, once the ISP receives the counter-notice, it must send it to the complai¬ 
nant, who, in turn, must respond if it has initiated a judicial process or not. This same law is clear 
in stating as an obligation of the ISP that, "If the person who sent the notice does not respond at 
all to the counter-notice, the ISP must restore the content in no less than 10 days or more than 14. 

-(g)(2)(c)." 


14 When the terms and conditions of service of these platforms are consulted, no further information is given on the 
counter-notice process, even in some cases this mechanism is not mentioned; it is only until the users receive a noti¬ 
ce that their contents have been withdrawn or their accounts deleted, that they are informed about the possibility of 
counter-notice if they consider it necessary. This is a fundamental problem of transparency. 




However, as we will see later in the documented cases, it is necessary to say that the support 
to make the counter-notice offered by some platforms through the text of the notice is more 
complete. 

Another problem identified is related to the possibility of following up on the counter-notice. In 
other words, it is usual that the procedures, complaints, or comments that a person initiates with 
a platform receive a number that starts a "ticket" that allows following the process and establi¬ 
shing who is responsible for answering the concern. However, this "number" does not guarantee 
that a person affected with content taken down or cancellation of its account has a way to follow 
its case. Initiating a counter-notice is like throwing a message in a bottle into the sea, some have 
a happy ending but everything indicates that most are lost at sea. 


The big problem: the language 

Although the analyzed ISPs have information about the counter-notice process in Spanish, the 
notices that users receive are written in English (with the exception of YouTube). Given the diffi¬ 
culty that this poses, so that people can be informed of the situation in which they find themsel¬ 
ves, it is also not clear if the complaint and counter-notice procedures can be done in a language 
other than English. In the terms and conditions of service this possibility is not explicit. 

It is also striking that ISPs, in their terms and conditions of service and in their internal poli¬ 
cies, report that they can eliminate accounts for repeated complaints of copyright infringement. 
However, no indication of this procedure was identified either in the public documents or in its 
web pages, or in the notices received by the affected persons consulted in this research, not even 
the number of complaints justifying the closing of accounts. That is, if the information on the 
counter-notice procedure is insufficient due to possible copyright infringements, then what ha¬ 
ppens in the case of account cancellation remains in the dark. 


Copyright as a limit to the freedom of expression on the Internet 



And how do counter-notices work in practice? 


In order to answer this question, 11 interviews were conducted with users affected by notices 
received through Twitter, Facebook, Vine, YouTube and Instagram. These are some of the stories 
that were entered: 


@andresacosta20 

According to his Twitter profile, he is a publicist, geek, runner and gamer. Vi¬ 
deo game and technology editor at @LaNacionGeek, and a sports fan. 

Since February 2016 (and even before) he began to receive a series of emai¬ 
ls from Twitter in which he was told of the removal of different content; the 
message said: 

“Hello. The following material has been removed from your account in response to the DMCA 
takedown notice copied at the bottom of this email" 

Later it described the tweet and then indicated the steps to carry out the counter-notice with 
the warning: 

“BY SENDING USA COUNTER-NOTICE, YOU CONSENT TO THIS DISCLOSURE OF YOUR 
PERSONAL INFORMATION 

Please note that repeat violations of this policy may result in suspension of your ac¬ 
count. In order to avoid this, do not post additional material in violation of our Copyright 
Policy and immediately remove any material from your account for which you are not 
authorized to post.” 

Finally, his account was closed and he was never able to recover it, although he did the coun¬ 
ter-notice process. The only response he received was: 



“Hello, 

You tried to update a case that has been closed. Please submit a new case athttp://su- 
pport. twitter.com/forms. You can also visit our help center at http://support. twitter.com 
for self-help solutions to common problems. 

Thank you! 

Twitter Support" 











(ZpJuezcentral 

This is a soccer fan who, through his Twitter account, seeks to tell curious 
facts about this sport. In mid-March 2016, after receiving several emails from 
Twitter, informing him that some of its contents had been removed due to 
possible copyright infringements notified by the Spanish Football League 
and RCN, his account was suspended. He did not do the counter-notice pro¬ 
cess until his account was closed, since according to what he said before, he did not unders¬ 
tand the process. On April 28, after submitting the following counter-notice - with his contact 
information and digital signature - his account was reinstated: 

"I swear under penalty of perjury that I have a good faith belief that the material was remo¬ 
ved or disabled as a result of mistake or misidentihcation of the material to be removed or 
disabled. 

1 consent to the jurisdiction of the Northern District of California, and I will accept service 
of process from the person who provided notice under 17 U.S.C. 512 (c)(1)(C) or an agent of 
such person." 


• # 



So far, he is one of the few users who were immersed in this situation where the counter-noti¬ 
ce process served him; however, to exercise his defense, he had to do it in English. 




soccer matches. 


@Humoblancoll 

This is a humor and information account about Once Caldas, a team that 
plays in the Colombian Soccer League. By March of 2016, the administrators 
of this account received 2 notices in which RCN stated that some of its con¬ 
tents violated the channel's right to broadcast the professional Colombian 
Then Twitter suspended the account. 


They made the counter-notice in English (because they also received the messages in Engli¬ 
sh) and initially there was no response, until the platform sent them an email saying that the 
suspension had been lifted and that the content had to be deleted and that receiving another 
notice would mean the definitive suspension. The process lasted more than a month in which 
Twitter did not answer anything on the case, so they temporarily had to open another account 
until they could retrieve the original one. 



Copyright as a limit to the freedom of expression on the Internet 













Internet is your passion 



"Lo Doy porque Quiero" 

This is a discussion space that functions in Medellin, Colombia, and whose pur¬ 
pose is the exchange of ideas and knowledge for which multiple audiovisual 
aids are used. "Lo Doy porque Quiero" occurs in a bar and the recording of the 
chats is later uploaded to YouTube. 

Although, in this case, the contents have not been eliminated or the account closed, their videos 
have been silenced and they have received messages from YouTube informing them: 

"A copyright owner has claimed against content that appears on your video through Con¬ 
tentin'' 

The reason is that, in the video uploaded to YouTube, the audiovisual aids used in the chat can 
be seen or, in other cases, a song playing in the bar can be heard during some period of the chat. 

With the support of the Karisma Foundation, they started the counter-notice process on the You¬ 
Tube platform, however, although they stated that they were making fair use of the content, their 
claims were not accepted and their videos continue to be silenced. 



Septima Carta 

This is a group of musicians from Venezuela from whom YouTube removed 
content from their channel for alleged violations of copyright. The situation 
was presented in July 2016 when the group received a message in their email 
account informing them that, due to a notice of non-compliance with copyri¬ 
ght they had received, they had to delete their video called Septima Carta - 
Desires of an Awakening + Piano Solo (En Vivo Centro Cultural BOD) and that the complaint 
had been issued by Caracol Television S.A. 

The surprising fact in this case is that the group is the composer of the song and the producer 
of the video published on YouTube. This situation led the group to start the counter-notice 
process, even with the warning that the platform gave: 

“Serious legal consequences can be generated if you send a counter-notice with false infor¬ 
mation." 


• # 



It is worth noting that the notice sent by YouTube also indicated that as holders of the chan¬ 
nel, they should take a mandatory "course" on copyright updating. Although after a few days 
its content was restored because Caracol withdrew the complaint, the feeling of Septima Carta 
is that throughout the process they did not have the opportunity for a timely defense, they 
never knew the reasons for the complaint by the television channel; they had to make a coun¬ 
ter-notice in the limited number of characters and were affected economically, to the extent 
that this video was being presented as part of the release of their musical project. 















^ @Yeimis 

This is a fan of America de Cali who posted 5 short videos of Colombian soc¬ 
cer league players on his Twitter account. On September 15, he received, one 
after the other, 5 messages in English where he was informed of the take¬ 
down of the videos and immediately afterwards, about the cancellation of his 
account. The reason was that RCN filed a complaint with Twitter on the grounds that its publi¬ 
cations were violations of the exclusive right of its television channel to the league matches. 

This case began to move in social networks when Yeimis himself published a video in which 
he asked WinSports (channel of the company RCN) to restore his account, because apart from 
being a channel to express his passion for soccer, he uses Twitter to support his needs as a 
person with disabilities, carry out actions in health matters and follow up on a claim to the 
social security system of the police. 

Since the emails arrived in English he could not understand what was happening. He thou¬ 
ght that it was enough to answer some of those emails asking for the account to be restored. 
At that time, the Karisma Foundation heard the case and began to help, explaining that it is 
necessary to answer each of the notices and that it must be done with specific conditions and 
statements and, ideally, in English because, by that time, we had established that it was more 
efficient. 

Just doing this was not easy and took several days. However, a few hours after sending the 
counter-notices, Yeimis recovered his account. But success cannot be attributed to the coun¬ 
ter-notices that the Foundation helped to carry out. Everything indicates that the account was 
enabled because RCN retracted the claim. 



Of the 11 people interviewed, 8 were related to the #NoMasCensuraWinsports case and received 
notices of content removal or cancellation of accounts for possible copyright violations repor¬ 
ted by the RCN and / or WinSports television channels, broadcasting organizations that have the 
license to broadcast Professional Colombian Soccer matches (although some said they had pre¬ 
viously received notices signed by the Spanish League). They closed the account of 6 of them (1 
stated it was only temporarily). 

It seems that television channels use the DMCA’s "notice and takedown" mechanism designed to 
respond to copyright problems, even though the problem is not a violation of copyright but rather 
the right of retransmission. In that sense, it is important to remember that soccer matches are not 
protected by copyright, as they are not considered works or creative tasks. 

On the other 3 people whose content is varied and different from the sporting theme, it can be 
said that: in one case, the notice was made on behalf of the Caracol Channel, another is by record 


Copyright as a limit to the freedom of expression on the Internet 








Internet is your passion 



companies - some of them from the USA and another from the United Kingdom - and the third 
case did not even receive a notice, they simply deleted its fan page on Facebook without any kind 
of justification or notice. 


Example of the notices some of those people affected received 


"Hello, 

We've removed or disabled access to the following content that you posted on Facebook be¬ 
cause we received a notice from a third party that the content infringes their copyright(s): 

Video uploaded on November 18th, 1:09pm PST 

If you believe that this content should not have been removed from Facebook, you can contact 
the complaining party directly to resolve your issue: 

Report #: 483959491788398 
Rights Owner: RCN TV 
Email: legal@copyrightip.com 

Copyrighted Work: A video my organization or client created 

If an agreement is reached to restore the reported content, please have the complaining party 
email us with their consent and include the report number. 

Facebook complies with the notice and takedown procedures defined in section 512(c) of the 
Digital Millennium Copyright Act ("DMCA"). If you believe that this content was removed as a 
result of mistake or misidentification, you can submit a DMCA counter-notification by filling 
out our automated form at 


We strongly encourage you to review the content you have posted to Facebook to make sure 
that you have not posted any other infringing content, as it is our policy to terminate the ac¬ 
counts of repeat infringers when appropriate. 


For more information about intellectual property, please visit our Help Center: 


15 This message was sent to a Facebook user in 2016 after posting a video taken from the stadium. It was shared with the 
Karisma Foundation in the framework of an interview for this research. 










Of the 11 cases analyzed: 16 

• All the cases studied are of men, frequent users of social networks, with different pur¬ 
poses, such as: sharing their passion for football, distributing their own content - songs, 
compositions, concerts, lectures, illustrations. 

• 5 of the cases correspond to Twitter, 2 to Facebook, 1 to Vine and 3 to YouTube. It is worth 
noting that the notices received only include the name of the complainant and the pro¬ 
tected work under the claim (none received a copy of the complaint itself). 

• 10 received notices about takedown of their contents, 7 accounts were canceled, 1 did not 
receive any type of notice. 

• 9 of them took some action, either answering by email or completing the information in¬ 
dicated by the ISR that is, they started a counter-notice process. Some of them presented 
the response in English and others in Spanish. Of these, only 5 recovered their content 
and/or account. 

• Regarding the 4 affected who presented counter-notices without success, 1 responded 
with the news that their process had been closed, another received in response that 
their counter-notice was not valid; 2 others never got any response. 

• Of the 7 affected with cancellation of accounts, 6 presented counter-notices: 4 recovered 
the accounts that had been closed. 2 of them without the reason for that recovery being 
explained, 1 was informed that the reason was the withdrawal of the complainant. The 
other person mentioned that the counter-notice procedure was successful. 

• The 2 people who did not do any post-notice procedure indicated that: 1) they did not do 
so because they believed it was a US policy that did not affect them and that they did not 
trust the process. 2) that they felt intimidated by the message received and preferred not 
to do anything about it. 

• Of the 11 cases, 10 correspond to people affected in Colombia and 1 in Venezuela, althou¬ 
gh the one who put forward the notice is a Colombian company. 

• Of the 11 cases analyzed, only 1 is directly related to US complainants. 

• Of the 11 cases, 1 found that his account had been closed and he had never received 
any notice. Then the account was on the air again, and this time there was no notice 
by the ISR 

• 1 of those affected who presented a counter-notice and did not get an answer, decided 
to open a new account and change the type of content that he usually shared on his ne¬ 
tworks, such as photos from the stadiums, videos with plays taken from the bleachers, 
among others, in order to avoid any possible infraction. 


16 See table 2 


Copyright as a limit to the freedom of expression on the Internet 



Internet is your passion 


20 



• The 11 said they could not follow up on their case and the widespread complaint is pre¬ 
cisely the lack of clear information about the process. 

• 1 of those affected accessed the ISP platform with one of the limited mobile plans offered 
in Colombia with "zero rating," 17 which is why it was not possible to carry out the coun¬ 
ter-notice in a simple way since he did not have complete Internet access that would 
allow him to use his email. 

• All those affected have the feeling that they did not do anything wrong and yet, now 
they are aware that they can lose their accounts, therefore they express with a different 
degree of rejection that they will not be able to continue sharing something that they 
consider legitimate just to avoid that effect. 

During the research, concerns were sent to the ISPs. Twitter’s response made reference to its 
18 where there is a section dedicated to notices and counter-notices related to 
the DMCA. The others did not respond. 

Twitter’s response highlighted the importance of transparency reports, but for Karisma they also 
show that they are not appropriate. The absence of the topic in the ISP transparency reports (with 
the exception of Twitter) is worrisome because this report is one of the few tools that allows moni¬ 
toring and giving more context to what happens with the freedom of expression and information 
of the people on the Internet. Twitter is the only one that includes the topic in its report. However, 
their data could be more appropriate because the report does not discriminate the figures and 
these are global, so it does not reveal specific cases by country. Twitter’s transparency report pro¬ 
vides statistical data on how many notices they received in a certain time range and to how many 
they responded (on Twitter, Vine and Periscope) and also includes how many counter-notices 
they received and how many they resolved. explains that from July 

to December, about 19,039 notices were received on Twitter and 5,777 on Vine (the report includes 
Periscope globally but does not include information on this network for this particular issue), 
while they only received 121 counter-notices (the figure is global, unlike what happens in the noti¬ 
ces there is no discrimination of geographic data) and points out that 100% of the counter-notices 
are successful and that the content was restored. The experience of the people interviewed in this 
study contradicts this measurement and, therefore, its reliability must be analyzed. 

Google - of which YouTube is part - has a transparency report in which data is presented on "Re¬ 
quests for removal of content for copyright infringement”; however, this information is not discri¬ 
minated by platforms and it is not possible to identify the specific situation of YouTube. Further¬ 
more, there is no information about counter-notices beyond pointing out that this is a possible 
action within the framework of the DMCA regulation. 


17 "Zero Rating" definition in Spanish at: https://es.wikipedia.org/wiki/Zero-rating 

18 "Twitter transparency report.” Available at: https://transparency.twitter.com 




Meanwhile, in its transparency report, Facebook focuses on evidencing requests for information 
from governments, but it does not account for the notices that, according to the provisions of the 
DMCA, it has received as an intermediary, nor the responses to them. Instagram, as a Facebook 
platform, does not have its own transparency report, nor is it mentioned - in a specific way - in the 
general Facebook report. 

A reading of these figures allows one to say that the problem may be that there is little use of 
the legal resource by the affected people. This information combined with the data of the eleven 
cases described, although it is not possible to be conclusive, it can be affirmed that it is another 
indication that the absence of information and facilities to use the counter-notice by the affected 
people works as a disincentive. The procedure is not friendly and this is why more ISPs are nee¬ 
ded to empower the people affected. 

On the other hand, reiterating that the sample collected is not enough to be conclusive, it can 
also be said that the counter-notice is far from being 100% effective, as stated in the Twitter trans¬ 
parency report. Considering the information provided by the people interviewed, and the infor¬ 
mation provided in the Twitter transparency report - although the report informs on a different 
period of time than the cases analyzed - it could be thought that the data of the report assumes 
that the platform always responds to counter-notices and that all of them are effective. This, as it 
was evidenced, was not true in the analyzed cases and therefore puts in doubt the data provided 
in the report or at least questions the basis on which this data is measured; it is possible that the 
platform does not consider all the counter-notices presented to it as valid and instead, people 
believe they have presented one. 

Finally, what is evident is that the report does not serve to resolve the doubts that arise from the 
terms and conditions of use and the interviews; where the unsuccessful counter-notice proce¬ 
dures will stop is not known. No response times are provided, nor do we know the reasons why 
counter-notices, among other examples, are successful or not. 

Considering that one of the main characteristics of the Internet is that it is a means of commu¬ 
nication that is not only a speaker where people are passive users of information, but it is also a 
medium in which people are active users of information which assumes that they co-participate 
in the creation of contents and in the distribution of information; we believe that it is necessary 
to recognize that the disproportionate application of the notice and counter-notice system, which 
affects all kinds of people, is going to impact, in a significant and difficult to measure way, the 
capacity of any person to be an active participant in the digital economy, which manifests itself 
in terms of the market in the idea of the prosumer, a consumer that is active. Although this effect 
goes beyond the scope of this document, it should be the subject of later analysis. 

So, for example: the musician who has invested in the release of his first online album without 
the need for intermediaries and for an unfair counter-notice loses all his effort; the sports com- 


Copyright as a limit to the freedom of expression on the Internet 


Internet is your passion 


22 





>ymwi 


mentator who is creating his fame on social networks (similar to what bloggers do) and his ac¬ 
count is closed; or the cultural spaces that upload the activities they carry out to their networks 
and lose the exposure of the content on the Internet for using seconds of protected material. 
All of them suffer damages but they remain invisible and they usually end up in practices of 
self-censorship and therefore do not take full advantage of Internet options to avoid, above all, 
the closing of accounts. 


23 



The DMCA and its impact in other Latin 
American countries 


In Colombia, the trigger was the case of soccer, and only a few months after the Olympics con¬ 
firmed the use of "notice and takedown" to prevent people who love sports to do what they have 
always done: share their passion. In the midst of the competitions that took place in Rio de Janeiro, 
cases were reported from different people whose accounts on social networks, such as Twitter and 
Periscope, were closed or their content dropped due to complaints from the International Olympic 
Committee. One of these cases occurred in Venezuela where 19 

after the publication of different events surrounding the competitions that were developing. The 
description of the affected party of this case allows confirming that some of the premises des¬ 
cribed by the interviewees in this research are repeated in their experience. The affected party said 
he submitted three claims in Spanish to Twitter, under the assumption that the content blocked 
(videos less than 90 seconds) did not incur any violation. These claims were sent in Spanish 20 and 
the only response was "Your account has been permanently suspended." It was when he sent the 
counter-notice again, this time in English, that he managed to recover his account. 

But, as we announced from the beginning, the blocking of content on social networks goes be¬ 
yond sports and, of course, is not an exclusively Colombian problem. We recall that, in the region, 
the case of 21 has been denounced and criticized by civil society for several years. In this 

country, content takedowns and blockades of Twitter accounts have been registered, in which cri¬ 
tical content with the government of President Correa has been published. In this case, according 
to the information reported by the people and organizations affected, it is even more complicated 
to carry out any action, as they do not receive notices of why their accounts have been blocked 
and how, in some cases, they suddenly have access again. 


19 ars TECHNICA UK. "Olympics fan claims Twitter killed his account after posting Rio videos" Available at:: i:tp://arste- 
chnica.co.uk/tech-policy/2016/08/olympics-fan-claims-twitter-killed-account-rio-videos/ 

20 See: The Lubrio space. Available at: http://lubrio.blogspot.com.co 

21 Digital Users "Press release: Digital Users rejects blocking of Twitter accounts that disseminate public information". 
Available (in Spanish) at: http://www.usuariosdigitales.org/2016/07/20/boletin-de-prensa-usuarios-digitales-recha- 
za-bloqueo-de-cuentas-de-twitter-que-difunden-informacion-publica/ 




Conclusions 


The cases analyzed show several situations. First of all, that the protectionist perspective of the 
current rules of copyright in the world can become an important barrier to the free expression of 
people on the Internet. Second, that the ISP’s own policies in relation to the takedown of content 
and the so-called "community rules" that are applied in the platforms, are unbalanced in favor of 
the right holders and therefore have not been designed to seek respect for the right to freedom 
of expression and access to information for those who use their platforms. The way in which 
this affects the ability of people to act as "prosumers" in a vibrant digital economy is still to be 
analyzed and, above all, measured. 

The elimination of content and/or accounts, either by legal mandate (for example, the mechanism 
of "notice and takedown" of the DMCA) or by the terms and conditions of service of the platforms 
themselves, has a significant impact on the lives of people, particularly in their right to freedom of 
expression, although it may have an impact on other rights, such as health, in the case of Yeimis 
or access to culture for the followers of Lo Doy Porque Quiero. 

The tension that is evident in this research is a problem for Internet users who see a public space 
in digital platforms - like social networks - to express themselves, create and even enjoy culture. 

As a housekeeper strategy, the conditional immunity of the DMCA provides a clear in¬ 
centive for the guardian, and although it imposes considerable costs - the ISP must have 
a responsible person in its company to attend to these procedures - it does not impose 
diffuse or disproportionate duties of monitoring and surveillance. The users and the com¬ 
munity, however, generally assume the costs. 

On the one hand, the user who is affected by a wrong takedown runs the risk of 'losing' 
the content - at least temporarily - and assumes the burden of defending it. On the other 
hand, the community in general is affected by expressions and information that are ex¬ 
cessively removed. On account of the balance of the incentives, the ISP loses nothing with 
the removal of material and it gains a lot with the entrance into the safe harbor. 22 


22 Cortes, Carlos (2013). "The keys of the housekeeper". Document produced by the initiative for Freedom of Expression 
on the Internet (iLEI), from the Center for Studies in Freedom of Expression and Access to Information (CELE) of the 
Faculty of Law of the University of Palermo, Argentina. Available at: http://carloscortes.co/mi-trabajo/2013/8/27/las- 
llaves-del-ama-de-llaves-la-estrategia-de-los-intermediarios-en-internet-y-el-impacto-en-el-entorno-digital 




The mechanisms of elimination or blocking have become a difficult obstacle to overcome and 
counteract, which affects anyone using the Internet. According to the cases analyzed in this re¬ 
port, we can highlight at least seven relevant problems of the current DMCA notice system: 

• Jurisdiction: One of the most problematic issues for people who use these types of plat¬ 
forms in Latin America is that if their content was eliminated or their account canceled 
they must be willing to sue in the United States. If they decide to counter-notify and the 
complainant initiates legal action before the court to sue them, that person must accept 
the jurisdiction of the US courts. This generates an inhibitory effect, that is, it generates 
so much intimidation that it ends up dissuading the person from defending its right to 
express itself freely due to the threat of a legal sanction that can mean a very high eco¬ 
nomic cost and the burden of following a legal case in a language different from their 
first language. 

• Language: Although the terms and conditions of the platforms are available in Spanish 
(with the exception of Vine, but this refers to the Twitter Help Center that is in Spanish) 
the problem with the language is presented at the moment the notice arrives. This re¬ 
presents an important barrier for the access of people who do not know this language, 
much less to face a text with legal and technical particularities. The inability to unders¬ 
tand what happens and how they should respond prevents them from defending them¬ 
selves, which was clear in the case of (ffiYeimis. 

On the other hand, when the platforms address the issues related to the possibility that 
a counter-notice may occur, it is not clear whether this can be done in a language other 
than English. What we know derives from the experience of the interviewees: someti¬ 
mes the platform notifies the affected person whose content has been deleted or its ac¬ 
count closed in English, as well as the procedure that must be followed to counter-notify, 
if this is the case. On other occasions, we learned that the notice had arrived in Spanish. 
This shows there is no established and standardized procedure. This can represent a 
limitation to the affected person and its adequate defense in case of needing it, either 
because they consider that there is an error or that the complaint is unjustified. But per¬ 
haps the most worrisome is that the cases analyzed show that there is a greater chance 
of success if the affected person responds with a counter-notice in English than if he or 
she does it in Spanish. No doubt the language is a barrier to the exercise of the rights of 
Internet users. 

• Response to counter-notice: According to the DMCA after the ISP receives the coun¬ 
ter-notice from the person whose content was blocked or deleted, it forwards it to the 
person who reported the content. As of that moment, the intermediary has between 10 - 
15 days to know if the plaintiff filed an action before the court; in case of not doing so, the 
platform must restore the blocked content or the account that was closed. This process 
is not effective, none of the platforms use it, the platforms do not send the complaint and, 


Copyright as a limit to the freedom of expression on the Internet 


Internet is your passion 


26 



although there seems to be a follow-up, the reality in the cases analyzed was that few 
of the counter-notices had the effect expected by the people and only one was able to 
know why. Nobody knew about this effect and none of them seem to have been applied. 
It is very possible that the platforms do not have this mechanism implemented, as it is 
explained below. 

• Follow-up to the procedure. In the absence of information on the counter-notice already 
described, it is added that there is no follow-up mechanism by the ISPs for the coun¬ 
ter-notices made. Of the cases that Karisma studied, what we see is that the ISPs have 
not implemented, within their protocols, a way to enforce the legal provision that obliges 
them to inform the affected party of the complainant’s response (if any) and to restore its 
content or account when, in the presence of a counter-notice, the complainant does not 
act before the courts. It is worrying, for example, the case of "Lo Doy Porque Quiero”, the 
affected party counter-notified and then received an email in which the platform told 
them that, despite this, the complainant maintains that there is an infringement, i.e., 
the act of the platform goes directly contrary to the norm, it simply takes the word of the 
owner and does not provide proof that a judicial process has been initiated as required 
by the law. 

• There are no data on this problem in the transparency reports, although most of the ISPs 
evaluated have a transparency report, they refer mainly to requests for information from 
the governments, they are not explicit about how they carry out other processes that 
may affect user accounts such as the one contemplated by the DMCA; only Twitter gives 
some information about this problem but it does it in an insufficient way. However, the 
effort of this social network is recognized for being more transparent since they Iver 
tise in their copyright policy: 

"In an effort to be as transparent as possible about the elimination or restriction 
of access to content published by users, we clearly mark the Tweets and the with¬ 
drawn multimedia content so that they indicate to the viewers when the content 
has been withdrawn (some examples below). We also send a copy of each copyri¬ 
ght and resource claim we process to Lumen, where they are posted on a public 
website (without your personal information)." 

• Cancellation of accounts: Another problem that is worth highlighting is related to the 
lack of information on the number of complaints that justify the cancellation of the ac¬ 
counts. In this sense, the disproportion and lack of transparency of this procedure in re¬ 
lation to the information and rights of the person affected by the closure of their account 
is even more worrisome. It is not clear how many notices are necessary for a platform to 
decide to close a user’s account, there is no information about this and the people who 
suffer the cancellation do not understand what is happening. It is a labor of deduction 
to establish that, to recover the account, it is necessary to process counter-notices to re¬ 
cover the contents. This is despite the fact that the effect for people of this measure can 



be even stronger than that of losing content, they lose their account, their followers, and 
their history. 

• Guidelines and manuals. ISPs do not have guidelines and manuals that facilitate coun¬ 
ter-notices, while they do have similar tools to support notice processes. This absence is 
felt and considerably unbalances the distressed parties. 


Copyright as a limit to the freedom of expression on the Internet 



Recommendations for ISPs 


The cases presented in this report are a reflection of a problem of large dimensions, where 
YouTube, Instagram, Vine, Facebook and Twitter - among others - as Internet intermediaries 
must assume a commitment to people’s right to freedom of expression. This affirmation is not 
something new, as it has been expressed by other civil society organizations that are also mo¬ 
nitoring the possible abuses derived from the content removal systems of platforms such as the 
EEF project’s Onlinecensorship.org 23 and Visualizing Impact and the Lumen Data Base, 24 from 
the Berkman Center. 

The conclusions of this research are aligned and adhere to the recommendations presented by 
these other projects aimed primarily at the ISPs implementing best practices that respect the 
rights of all Internet users and not only the copyright owners: 25 

• Companies must work to ensure that their policies reflect the linguistic diversity and 
other needs of the countries in which they are present; this implies that in addition to 
publishing their policies clearly, in simple language and being easily accessible, they 
should ensure that the following steps to consult the terms and conditions or the fre¬ 
quently asked questions can also be done in different languages. 

• ISPs should work on improving their appeal processes to ensure that content that has 
been wrongly deleted can be easily restored. This starts by giving people better informa¬ 
tion and by facilitating mechanisms to present a counter-notice, as it is actually done 
with the copyright holders who want to make a claim. 


23 https://onlinecensorship.org/ 

24 https://lumendatabase.org/ 

25 Some of the recommendations given by Report 1 were taken into account. "UNFRIENDING CENSORSHIP. Insights 
from four months of crowdsourced data on social media censorship "and report 2 " CENSORSHIP IN CONTEXT. In¬ 
sights from Crowdsourced Data on Social Media Censorship "presented by onlinecensorship.org in March 2016 and 
November 2016 respectively. These were adapted to the present report based on the conclusions derived from the case 
studies proposed here and the particularities of the same. The reports in mention are available online at: https://s3- 
us-west-l.amazonaws.eom/onlinecensorship/posts/pdfs/000/000/044/original/Onlinecensorship.org_Report_-_31_ 
March_2016.pdf?2016 and https://s3-us-west-l.amazonaws.com/onlinecensorship/posts/pdfs/000/000/088/original/ 
Censorship_in_Context_November_2016.pdf?2016 




• Transparency reports are a tool that generates confidence with users, as it allows them 
to know the actions of the ISP in order to manage and use their data, and also provides 
information necessary to guarantee the rights of those who access these platforms. For 
this reason, we also recommend expanding transparency reports, including information 
related to content deletions made on the basis of reports from other users or not from the 
platforms and not only those of the governments. 

• Regarding transparency, ISPs are recommended to work on making their processes 
more transparent by making the process of content management, complaints and coun¬ 
ter-notices more clear and public. In this regard, it is necessary that people who have 
been reported know the complaint in order to exercise an adequate defense. It is not 
enough just to give the name of the person who filed the complaint and, in any case, is 
an element that the DMCA itself considers. 

• ISPs must adjust their procedures to comply with legal requirements so that the pro¬ 
cedure includes due follow-up to the counter-notice process so that, within the term of 
the DMCA, the content (or account) is restored if the complainant does not submit the 
judicial complaint. 

• These platforms that manage the data of millions of people around the world, must work 
on educational tools for those who make use of their services, in which they clearly indi¬ 
cate which actions are incorrect, which policies they may violate, how they can defend 
themselves; and not simply wait for an action to be given to punish them and remove 
them from the platform for some time or indefinitely. 

• Finally, we recommend not only the ISPs, but also the civil society organizations and 
international multilateral organizations that have been interested in this problem, to 
consider the impact of these procedures for people in general, for small cases, that is, 
common users - who are not necessarily activists, opponents or people of a specific po¬ 
pulation or minorities - who are affected daily by the possible abuses derived from the 
notice and takedown system and who do not know what they are dealing with. 

Countries that, like Colombia, have not yet legislated to create "safe harbor" systems for Internet 
intermediaries, must learn from the failures of the US "notice and takedown" system and not re¬ 
peat them to the detriment of the people. 


Copyright as a limit to the freedom of expression on the Internet 


30 



References 


Annual reports of the Office of the Rapporteur for Freedom of Expression of the OAS. Available in Spa¬ 
nish at: http://www.oas.org/es/cidh/expresion/informes/anuales.asp 
ars TECHNICA. "UN report: "three strikes" Internet laws violate human rights" Available at: ttp://arste- 
chnica.com/tech-policy/2011/06/un-free-speech-watchdog-blasts-three-strikes-rules/ 
ars TECHNICA UK. "Olympics fan claims Twitter killed his account after posting Rio videos" Available 
at: http://arstechnica.co.uk/tech-policy/2016/08/olympics-fan-claims-twitter-killed-account-rio- 
videos/ 

Article 19 (2013). "Los intermediarios del Internet: Dilema de responsabilidad -sesion de preguntas y 
respuestas" (Internet intermediaries: responsibility dilemma - questions and answers session). 
Report in Spanish available at: https://www.articlel9.org/resources.php/resource/37243/es/ 

los-intermediarios-del-internet:-dilema-de-responsabilidad-%E2%807o93sesi7oE3%B3n-de-pre- 

guntas-y-respuestas 

Cortes, Carlos (2013). "Mirar hacia el norte es mirar hacia atras: el impacto negativo de la DMCA. El 
mecanismo de notifrcacion y retiro y las Medidas Tecnologicas de Protection" (Looking north 
is looking back: the negative impact of DMCA. The notification and takedown mechanism and 
the protection technological measures). Available in Spanish at: ' p://carloscortes.co/mi traba 
jo/2013/8/27/mirar-hacia-el-norte-es-mirar-hacia-atrs-el-impacto-negativo-de-la-dmca-el-me- 
canismo-de-notificacin-y-retiro-y-las-medidas-tecnolgicas-de-proteccin 
Cortes, Carlos (2013). "Las llaves del ama de llaves" (The keys of the housekeeper). Document produced 
through the initiative for the Freedom of Expression on the Internet (iLEI as per Spanish acron¬ 
ym), of Centro de Estudios en Libertad de Expresion y Acceso a la Information (CELE, Spanish 
acronym standing for Study Center for Freedom of Expression and Information Access) of the 
Law School of Universidad de Palermo, Argentina. Available in Spanish at: ip://carloscortes. 
co/mi-trabajo/2013/8/27/las-llaves-del-ama-de-llaves-la-estrategia-de-los-intermediarios-en- 
internet-y-el-impacto-en-el-entorno-digital 

Facebook. "Terms of service", "About Intellectual Property." Available at: ps://www.facebook.com/ 

help/intellectuaLproperty 

Instagram. "Terms of service", "How does Instagram process DMCA counter-notices? Available at: 

https://www.facebook.com/help/instagram/697328657009330?sr=6&query=What+informa- 
tion+is+provided+to+a+user+whose+content+is+removed+due+to+a+copyright+claim%3F 
LUMEN Database. "DMCA Safe Harbor." Available at: https://www.lumendatabase.org/topics/14 



OMPI. "Internet Intermediaries and Creative Content" Available at: http://www.wipo.int/copyright/en/ 
internet_intermediaries/index.html 

Onlinecensoship.org. (March 2016) "UNFRIENDING CENSORSHIP Insights from four months of crowd- 
sourced data on social media censorship." Available at: i)s://s3-us-west-l.amazonaws.com/ 

onlinecensorship/posts/pdfs/000/000/044/original/Onlinecensorship.org_Report_-_31_ 

March_2016.pdf?2016 

Onlinecensoship.org. (November 2016) "CENSORSHIP IN CONTEXT. Insights from Crowdsourced Data 
on Social Media Censorship". Available at: https://s3-us-west-l.amazonaws.com/onlinecensors- 
hip/posts/pdfs/000/000/088/original/Censorship_in_Context_November_2016.pdf?2016 

Redpatodos (2012). "POSICION DE REDPATODOS FRENTE A UN PROCEDIMIENTO DE NOTIFICACION Y 
RETIRO DE CONTENIDOS PARA COLOMBIA" (Redpatodos' position regarding a Notice and Take¬ 
down procedure for Colombia). Available in Spanish at: https://redpatodos.co/blog/procedimien- 

to-notificacion-retiro/ 

THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998 U.S. Copyright Office Summary. December 1998. 
Available at: https://www.copyright.gov/legislation/dmca.pdf 

Twitter. "Terminos de servicio" (Terms of service). Available in Spanish at: https://twitter.com/tos?lang=es 
Usuarios Digitales. "Boletin de prensa: Usuarios Digitales rechaza bloqueo de cuentas de Twitter que 
difunden informacion publica" (Press release: Usuarios Digitales rejects blocking of Twitter ac¬ 
counts spreading public information). Available in Spanish at: ip://www,usuariosdigitales. 
org/2016/07/20/boletin-de-prensa-usuarios-digitales-rechaza-bloqueo-de-cuentas-de-twit- 
ter-que-difunden-informacion-publica/ 

Vine. "Terms of service". Available at: ips://vine.co/terms 

Winsports (2016). "Win Sports te explica aqui todo lo relacionado con el uso de material del FPC" (Win 
Sport explains you everything you need to know regarding the use of FPC content). Available in 
Spanish at: http://newadmin.winsports.co/futbol-colombiano/noticias/win-sports-te-explica- 

aqui-todo-lo-relacionado-con-el-uso-de-material-del-fpc-5616 

YouTube. "Terms of service," "Counter-notice Requirements." Available at: ips://support.google.com/ 
youtube/answer/6005919 

"17 U.S. Code § 512 - Limitations on liability relating to material online" Available at: :tps://www.law, 
cornell.edu/uscode/text/17/512_ 


Copyright as a limit to the freedom of expression on the Internet 


Internet is your passion 



The DMCA is the Copyright Law of the United States created in 1998 in response to the treaties 
of the World Intellectual Property Organization - WIPO that were aimed at regulating copyright 
in the face of the challenges of the digital environment. It is divided into 5 titles and one of 
them includes specific provisions on online copyright infringement and creates the concept of 
Safe Harbor, which consists of the Internet intermediaries (or ISP standing for Internet Service 
Provider) being exempt from any liability that may arise from a possible infringement of the 
copyright generated by the users of its services. For this, the notice and takedown system, or 
notification system, was created, which leads to a withdrawal or blocking of contents when 
there is a complaint for copyright. This law even requires that ISPs have a policy of terminating 
account subscriptions that repeatedly commit copyright infringement. 

When a copyright owner, or a dully authorized agent, wishes to submit a notice for a possible 
infringement of their right, they must include the following information: 

1. Identification of the person or entity that sends the notice. 

2. Clearly established relationship with the copyright holder. 

3. Identification of content that allegedly violates copyright. 

4. Formal statement where, under oath, they state that the information in the notice is correct 
and that the signer is the copyright holder or the one authorized to act on his behalf. 

5. Physical or electronic signature along with a name and physical contact address in case 
someone wants to impugn the notice. 

This system assumes that in case of considering that there is an error in the notice, the affec¬ 
ted user can send a counter-notice so that its content or account can be restored. The coun¬ 
ter-notice must contain: 

1. A statement, under penalty of perjury, that the sender has good faith and that the material 
was eliminated or disabled as a result of an error or misidentifrcation. 

2. The identification of the material that has been eliminated and the place where it appeared 
before being withdrawn. 

3. Personal contact information: Name, phone number, email, and a physical address. 

4. A section in which the person presenting the counter-notice accepts the jurisdiction of 
the Federal District Court (in the United States) in which the provided address is located. If 
the address is outside the United States, the person accepts the jurisdiction of any judicial 
district in which the service provider may be found, and that the subscriber accepts the 
judicial process of the person who provided the notice to its representative. 

5. Electronic signature. 


According to the DMCA, once the ISP receives the counter-notice, it must wait 10 to 15 days 
before reactivating or allowing access to the content, unless the person who submitted the no¬ 
tice files an order in court against the owner of the content or the possibly infringing account. 









Cuadro 2: analisis de los casos 



User 

SS 

C/D 

Country 

Twitter 

Facebook 

Vine 

Youtube 

Withdrawn content 

Account cancelation 

Counter-notice made or 

similar 

Content and/or account 

restored 

Received answer or 

follow-up 

MillonariosNY 

M 

Col 

X 




X 

- 

- 

- 

- 

2 

(ffisoyandresacosta 

M 

Col 

X 




X 

Tw 

X 

- 

X 

3 

@futbolsinlimite 

M 

Col 


X 



X 

- 

X 

- 

- 

4 

(ffijuezcentral 

M 

Col 

X 




X 

Tw 

X 

X 

- 

5 

@humoblancoll2 

@humoblancoll 

M 

Col 

X 




X 

Tw 

X 

X 

- 

6 

(ffilOJernandomg 

M 

Col 




X 

X 

YouTube 

- 

- 

- 

7 

Notimillos 

M 

Col 



X 


X 

Vine 

X 

- 

- 

8 

Lo doy porque quiero 

M 

Col 




X 

X 

- 

X 

- 

X 

9 

Sebastian Martinez 

Disenador 

M 

Col 


X 



X 

Fb 

X 

X 

- 

10 

Carta Blanca 

M 

Venezuela 




X 

X 

- 

X 

X 

X 


Yeimis 

M 

Col 

X 




X 

Tw 

X 

X 

- 


TOTALS 

11 


5 

2 

1 

3 

11 

7 

9 

5 

3 










1 YouTube 













1 Vine 













1 Facebook 













1 Twitter 





Conventions: 

Yes X No: - Tw: Twitter Fb: Facebook M: Male Col: Colombia 


Copyright as a limit to the freedom of expression on the Internet 










































Internet \, 

is your passion 


Copyright as a limit to the freedom 
of expression on the internet 


Carolina Botero 
Laura Mora 
Maria Juliana Soto 

O karisma.org.co 

Twitter: @Karisma 
Facebook: @fundacionkarismaa 


karisma.org. co/internetestupasion